Multinational weapons maker Saab warned an Australian federal government board member that a missile discovered within an Aboriginal heritage area could lead to legal action and “ramifications”, emails obtained by SBS News reveal.
The emails question whether the Department of Defence breached government policy by failing to remove the 1.32-metre anti-aircraft missile for 12 months after it was found by Traditional Owners in January 2021.
A separate chain of emails show Saab gave federal government lawyers the opportunity to “remove” information from an inquiry submission before it was released to Traditional Owners.
Kokatha men Andrew and Robert Starkey discovered the body of the Saab RBS-70 missile while inspecting heritage sites at Lake Hart West in South Australia.
A copy of an email Saab sent to the SA state government regarding the missile found at Lake Hart West. Source: SBS News
Lake Hart West is a registered Aboriginal heritage site lying within the Woomera Prohibited Area (WPA), a massive weapons testing range operated by the Department of Defence. It is typically considered “off-limits” for Defence activities because of its cultural heritage values.
John Podgorelec, lawyer for the Starkeys, approached Sweden-based Saab in September 2021, frustrated by the department's apparent lack of interest in removing the missile. Following this phone call, Saab employee David Ledger relayed these concerns to Richard Price, who is a member of the federal government's Woomera Prohibited Area Advisory Board and the chief executive of South Australian government agency Defence SA.
Mr Price is a former Saab Australia managing director and former Saab vice president in Sweden.
“The Indigenous community is apparently frustrated with the Defence response and may be seeking further legal redress at some point,” Saab wrote to Mr Price on 9 September 2021.
“From a Saab perspective this is purely a matter for Defence but thought to pass this on since there may be some ramifications for the state and the WPA."
The missile was discovered during an inspection of an Aboriginal heritage site in January 2021. Source: Supplied
Mr Price emailed in response: "Thank you for bringing this to my attention. We have confirmed with the Department that they are well aware and still in negotiations with the Traditional Owners".
According to the 9 September email, lawyer Mr Podgorelec told Saab the federal Department of Defence had ignored offers from Traditional Owners to help find and remove the missile.
“[The Starkeys] contacted WPA range to report and request removal of the [missile] and were advised not to re-enter,” Saab wrote.
“Defence indicated they were having trouble locating the missile and the Indigenous community offered to guide them to the location.
“This offer was not taken up and some considerable time passed with no further response from Defence.”
The emails were obtained by SBS News under Freedom of Information laws.
Saab did not respond to a request for comment about the emails.
A spokesperson for Mr Price said the emails encapsulated all correspondence between Defence SA and Saab.
Later in September, the Starkeys lodged a complaint with the OECD, alleging Saab had failed to undertake adequate due diligence before its missiles were sold to, and tested by, the Australian military.
The OECD is an independent body that investigates complaints involving the conduct of multinational companies. Its guidelines state businesses are expected to "avoid and address negative impacts of their operations" while contributing to sustainable development.
An OECD investigator recently recommended Saab and the Starkeys enter formal negotiations on the issue.
Andrew Starkey said he was “very satisfied” with the OECD response.
“It could be good for us here - but it’s good to know that others that have been affected by missile misuse around the world may also benefit from it,” he said.
In its submissions to the OECD, Saab argued that weapons sold to the Australian government were “subject to strict export control laws … to prevent the use of regulated products in harmful ways”.
‘A little disturbing’
Saab’s email to Mr Price also raises questions about the federal government’s “clean range” policy at Woomera.
“Back in Jan [the Starkeys] got permission to visit these heritage sites around Lake Hart,” the Saab employee wrote on 9 September 2021.
“And while doing so located a missile in the sand which they believe is an RBS-70 Bolide, which is confirmed by the photo they sent through.
“This was a little disturbing as part of the agreement between Defence and the Indigenous community is a clear range policy, to remove all debris on completion of any firings.”
Details of the federal government’s clean range policy are difficult to find. It is mentioned briefly in a 2018 review of the Woomera Prohibited Area.
“… Defence now has in place a ‘clean range’ policy to minimise any hazards to users of, or visitors to, the WPA and to keep the WPA as free as possible from testing debris,” the review reads.
SBS News has seen an internal copy of a clean range policy developed by the federal Defence Department at some point in the late 1990s. It is unclear if this policy has since been updated.
“Where an area is likely to be fouled for an indefinite period and where practicable, it is to be isolated by a suitable fence and warning signs erected on the approaches to and along the fence lines,” that policy reads.
The salt-encrusted surface of Lake Hart, near the town of Woomera in remote South Australia. Source: Getty / Getty/EyeEm
Mr Starkey said that, by leaving the missile at Lake Hart West, the federal Defence Department had "clearly not" followed this policy.
“The policy demands that range users clean up their war materials before they leave,” he said.
SBS News asked the federal Department of Defence about its clean range policy multiple times and whether it had failed to meet its obligations under the policy.
A spokesperson said in a statement earlier this month the department "worked closely with Traditional Owners to locate and recover the missile".
"Defence is committed to managing heritage values on its estate in ways that are consistent with the principles and requirements of Commonwealth heritage legislation."
The missile was removed in January 2022 - some 12 months after it was discovered.
'Anything to remove'
In November 2021, Saab finalised its submission to the OECD complaint. But before this submission was released to Traditional Owners – standard practice in the OECD process – it was sent to lawyers from the Department of Defence.
“I have today received an email from the Independent Examiner asking for consent to release to the complainants,” a Saab employee wrote on 12 November 2021.
“I wanted to confirm with you before confirming consent … whether there was anything in the response you would like me to remove.”
Saab gave Defence the opportunity to remove information from its submission before it was seen by Traditional Owners. Source: SBS News
At that stage, the department had still not found the missile.
Mr Starkey said it was shocking to learn the department had read the submission before Traditional Owners.
“That shocked me as much as when we found out that Defence had the draft decision for our case weeks before we did - and Defence didn’t even tell us even though we were still in talks with them,” he said.
“It sounds like a conflict of interest to me.”
The department said it engaged in the OECD investigation at the request of both Saab and the Starkeys.
"Defence advised the parties, based on specialist advice, that the missile was inert," a spokesperson said earlier this month.
The department has declined to explain how the missile came to be at Lake Hart West.
Saab said it would not be commenting further while the OECD process was still underway.
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